February 14, 2014: ABA Midyear Meeting in Chicago

The ABA hosted its midyear meetings in Chicago from February 5-11. We highlight some of the developments from these meetings.

ABA President’s Address

ABA President James Silkenat addressed voting rights and gun violence in his remarks to the ABA House of Delegates on Monday, February 10.

Silkenat warned the House, “Voting rights in the United States are clearly under attack. Whether you agree or disagree with the Citizens United and Shelby County decisions, it is easy to see how our democracy can be undercut by rules and regulatory practices aimed at limiting full and fair voter participation. This is not a partisan issue.”

He announced that the theme for Law Day this year is “American Democracy and the Rule of Law: Why Every Vote Matters.” According to the ABA’s Law Day webpage: “Much of the struggle on voting rights began decades ago, but the work is far from complete, and a citizen’s right to cast a ballot remains at risk today.” One feature on the website asked for analysis of this political cartoon which illustrates voter ID laws and early voting curbs as obstacles in the reflecting pool under a sign stating “Wipeout Voter Fraud.”

Silkenat also discussed gun control. Choking up, he declared, “I am still heartsick that Congress was unable to respond to the tragedy that took place in Newtown. I have a farm not too far from there and know how the families involved have been destroyed by the loss of their children. But Congress failed to prevent these tragedies in the future. Many members of Congress seem more interested in their approval rating from the gun lobby than in protecting the safety of their constituents.” He emphasized, “The ABA does not get involved in politics. As an organization, we do not support political candidates. We do not have a political action committee. But we as an Association do speak on important national issues like gun rights, and America’s legal response to gun violence thus far is unacceptable.”

To applause, he continued, “Going all the way back to the Kennedy assassination, the ABA through this House… has taken a strong stance on reducing gun violence and supporting legislation that protects important Second Amendment rights. In letters and testimony to Congress this last Spring that cited our policies, the ABA called for laws that curbed gun violence including more resources to treat mental health issues in our criminal justice system. The letters also endorsed measures that would improve the background check system, strengthen laws that address illegal gun trafficking, and limit the availability of military-style assault weapons and high-capacity ammunition clips.” He stressed, “These steps are fully consistent with the right to bear arms as expressed by the U.S. Supreme court in the Heller case. The Supreme Court through Justice Scalia made it clear that the Second Amendment does not allow a citizen to keep and carry any weapon whatsoever in any manner whatsoever and for any purpose, and that’s a quote from Scalia.”

ABA House of Delegates

Amongst the policies considered by the House of Delegates:

The Commission on Homelessness and Poverty and the Section of Individual Rights and Responsibilities sponsored Resolution 107, which urges governments to promote the human right to adequate food and nutrition and urges the United States to make the realization of a human right to adequate food a principal objective of U.S. domestic policy. The recommendation was adopted.

Recommendation 110 urged Congress to enact the “Improving Access to Medicare Coverage Act of 2013” (HR 1179) (S 569) to consider an individual receiving outpatient observation care services in a hospital to be an inpatient with respect to satisfying the three-day inpatient hospital stay requirement for Medicare coverage of a post-hospitalization stay in a skilled nursing facility. The recommendation was adopted.

Recommendation 10A urged Congress to enact legislation that creates and adequately funds alternative avenues of redress for victims of unwanted sexual contact in the military. The recommendation was withdrawn.

Recommendation 177C established a cost-of-living increase for ABA dues from 2016-18, on top of a 13% increase in 2015. The recommendation was adopted.

Executive Director Jack Rives addressed the House of Delegates about the economic concerns that the Association was facing. He revealed that the ABA has insufficient resources to meet all of the demands placed on it. The ABA has “significant revenue shortfalls” and is behind in non-dues revenue collections. The ABA was cutting expenditures, including renegotiating its Chicago office lease and limiting the use of consultants. Rives also revealed that the ABA had frozen staff salaries and laid off over three dozen employees three years ago while leaving some vacancies open. This saved about $5 million dollars. He emphasized the ABA needed more members and more non-dues revenue.

Future ABA Leadership

The ABA nominated Paulette Brown of Edwards Wilman in Morristown as its President-Elect for 2014-15. Brown will be the first African-American woman to head the ABA. She has donated both to President Barack Obama and Senator Cory Booker. Patricia Lee Refo was nominated as Chairman of the House of Delegates for a two-year term beginning in August 2014. She is a partner in the Phoenix office of Snell & Wilmer. In the last four years, Refo has donated to the Democratic Senatorial Campaign Committee, the DNC Services Corp., the Democratic Party of Arizona, President Barack Obama, and several Democratic Congressional candidates. She has given one donation to a Republican, $500 to Senator Lindsey Graham in 2012. These candidates will be voted upon by the ABA House of Delegates at its Annual Meeting in August.

Awards

The ABA presented many awards this year, including the Second Annual Stonewall Awards bestowed by the Commission on Sexual Orientation and Gender Identity. Awardees were:

Judge Elaine Kaplan has served on the U.S. Court for Federal Claims since September. She previously was the acting director of the U.S. Office of Personnel Management.

Justice James C. Nelson served as a justice on the Montana Supreme Court from 1993-2013. On the Court, Justice Nelson authored several concurrences and opinions in decisions that expanded civil rights protections for homosexuals. He denounced discrimination against homosexuals as bigotry, labeling it “a prevalent social cancer grounded in bigotry and hate.”

Prof. Stephen Whittle is a professor of equalities law at Manchester Metropolitan University in Manchester, England. According to the ABA media release, “Whittle transitioned to living permanently in his preferred gender role in 1975 and was made an officer of the Order of the British Empire in the Queen's New Year's Honours List for his work on transgender people's rights.”

The ABA Commission on Sexual Orientation and Gender Identity was one of the 11 prime sponsors of the Midyear Meeting program. The Commission sponsored a CLE program on Russia’s laws on homosexuality and how these laws affected the Olympics. The ABA also honored seven lawyers with its 2014 Spirit of Excellence awards, presented by its Commission on Racial and Ethnic Diversity in the Profession. Among the awardees were Frankie Muse Freeman, the first woman to serve on the U.S. Commission on Civil Rights; Judge Brenda Harbin-Forte, a Superior Court judge in California. who “led efforts in her state to increase diversity in the legal profession and on the bench — convening the first judicial diversity summit and instituting a process to assess the demographic makeup of the California bench;” South Carolina criminal defense attorney I.S. Leevy Johnson; California lawyer Patricia D. Lee; retired Dean Leo Romero of the University of New Mexico School of Law; retired corporate attorney Wendy C. Shiba, who served as immediate past president of the National Asian Pacific American Bar Association; and environmental attorney Benjamin F. Wilson, who founded the D.C. Diverse Partners Network.

During the awards ceremony, several awardees referenced current legal and public policy. With respect to the Voting Rights Act, Awardee Frankie Freeman stated, “A few months ago the U.S. Supreme Court diminished part of it as you know, and we are hoping that at least Congress will revise and make the necessary amendments to the Voting Rights Act…There are still a lot of things happening in terms of voter [identification] legislations in several states in which I am very sure that the members of ABA will take appropriate action.” Honoree Benjamin Wilson discussed gun violence, stating, “Today, black people in Chicago are being murdered at an alarming rate… Far too many are children. The ABA, and those of us in this room, have work to do… Somewhere in America a couple is driving to start a new life. A baby girl is bouncing in her car seat and already her parents are planning for her future. Let us resolve right here and right now that we will ensure she has a real future.”

Efforts to tighten bar passage rate requirements as a condition of accreditation stalled this February when the ABA's Standards Review Committee-part of the ABA Section on Legal Education and Admissions to the Bar-opted not to act on a proposal that would have reduced a law school's window for achieving the requisite 75% passage rate for graduates from the current five years down to two. The proposal also would have eliminated the current alternative to the 75%-five-year requirement: a school can still pass muster if its passage rate in reported jurisdictions is "no more than 15 points below the average first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions."

According to Standards Review Committee chair Jeffrey E. Lewis, Dean Emeritus and Professor at Saint Louis University School of Law, the Committee's decision reflected concern about inadequate data from state bar examiners and uncertainty about how best to account for differing pass rates among states, but the issue is likely to resurface again next year. An earlier and more stringent proposal to raise the passage rate to 80% within two years of graduation also failed to gain traction after the National Bar Association and the Society of American Law Teachers argued that it would have "dire consequences on law schools with racially diverse populations." Similar concerns were expressed regarding proposed elimination of the alternative 15-point threshold. Although the decision to hold off on tightening the bar passage requirement was unanimous, at least one member indicated that the Committee did so "while holding its collective nose."